Why It Is Important to Have an Attorney Who Focuses on Special Needs Trusts

Many attorneys create trusts, and some even create special needs trusts, often using pre-written templates. So why, you may ask, do you really need an attorney whose practice focuses on special needs planning?

It is important that special needs trusts not be unnecessarily inflexible and generic, which is what can happen with a “one size fits all” trust template. The eligibility rules for Medicaid are different from those for Supplemental Security Income which are different from those for Section 8 housing. While the generic trust may work if properly administered, without proper counsel the trust is likely not to be properly administered. The choice of trustee is at least as important as the wording of the trust. But even in drafting the trust, it can be important to customize it to the particular child’s needs. And who should appoint successor trustees if you’re not around to do it yourself? Do you want an advisory committee to make sure the trustee understands the beneficiary’s needs and best uses the money you leave?

Attorneys without special needs experience time and time again make the mistake of putting a “pay-back” provision into the trust rather than allowing the remainder of the trust to go to others upon the special needs child’s death. While these “pay-back” provisions are necessary in certain types of special needs trusts, an attorney who knows the difference can save your family hundreds of thousands of dollars, or more.